N8165

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

    OS 628 of 2009 (COMM)

		BETWEEN:
STEVEN VAVAI ROVE, 
Chairman Varagadi O’ora Clan
Plaintiff

AND:
VARAGADI INCORPORATED 
LAND GROUP
First Defendant

AND:
STEVEN IMIRI,
Chairman of the Varagadi Edevu Clan
Second Defendant

AND:
THE NATIONAL FOREST 
AUTHORITY
Third Defendant

Waigani: Hartshorn J
          2019: 20th November

Application to dismiss this proceeding

Cases Cited:

Paul Tohian v. Tau Liu (1998) SC566
Paul Eddie v. Bill Kirokim (2012) N4932
CMSS (PNG) Ltd v. State (2014) N5717
Tovon v. Malpo (2016) N6240
Counsel:

Ms. L. Pinap, for the Plaintiff
Mr. T. Dalid, for the Third Defendant

20th November, 2019

1. HARTSHORN J: This is a decision on a contested application to dismiss this proceeding.

Background

2. The plaintiff is purportedly a customary land owner of land known as Iomare and is Chairman of the Varagadi O’ora sub clan. He seeks amongst others, a declaration that the O’ora sub clan and the Edevu sub clan of the Varagadi Clan of the Iomare Land of Brown River, Hiri District, Central Province, are each entitled to 50% of all settlement payments for the Rubulogo Teak Seed Orchard Plantation in the Iomare Land.

This application

3. The National Forestry Authority, the third defendant (NFA) seeks to dismiss this proceeding pursuant to Order 12 Rule 40(1) National Court Rules and on the ground that s. 5 Claims By and Against the State Act (Claims Act) has not been complied with.

4. The plaintiff submits that his claim does not meet the tests necessary for the proceeding to be dismissed pursuant to Order 12 Rule 40(1) National Court Rules. Further, his claim is founded on equity. It is not founded on a breach of contract or tort and is not a breach of constitutional rights. Consequently, the notice requirements of s. 5 Claims Act do not apply, it is submitted.

Preliminary

5. The plaintiff submits that the application by NFA to be granted leave to amend its notice of motion to claim that s. 5 Claims Act has not been complied with and should not be permitted. This is because NFA relies upon Order 8 Rule 50(1) National Court Rules. That Rule, submits the plaintiff, cannot be relied upon as it only allows for an amendment of a pleading. A notice of motion is not a pleading. The case of Tovon v. Malpo (2016) N6240, a decision of Kandakasi J (as he then was) is relied upon.

6. Order 8 Rule 50(1) National Court Rules provides under the heading “General” that:
 
“50.	General. (20/1)
(1)	The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.”
7. To the extent that the decision in Tovon v. Malpo (supra) is to the effect that Order 8 Rule 50(1) may not be relied upon to seek to amend any document which is not a pleading, then I respectfully disagree with that decision. The wording of Order 8 Rule 50(1) does not confine its operation to a pleading. Consequently, I am satisfied that the NFA may rely upon this Rule to amend its notice of motion. The preliminary objection by plaintiff is refused.

Section 5 Claims By and Against the State Act
8. I consider the Claims Act issue first.
9. As to whether the plaintiff’s claim is founded in equity or on a breach of contract or tort; in the plaintiff’s affidavit filed in support of his Originating Summons he deposes at  [17] to [19]that there was an agreement that each of the sub clans are entitled to 50%.
10. It is upon this agreement that the plaintiff’s cause of action is founded: a contract.
11. The plaintiff’s argument in his submissions that he is not claiming anything from the State, of which NFA is a part, does not detract from his cause of action being founded on the agreement referred to. As an aside, if the plaintiff is not claiming anything from NFA, then why was NFA named as a party.
12. That NFA is a party, and it is not disputed that NFA falls within the “State” for the purposes of the Claims Act, and that the plaintiff’s cause of action is founded on contract, requires that s. 5 Claims Act be complied with. It has not been.
13. In regard to whether the proceeding should be dismissed,the Supreme Court case of Paul Tohian v. Tau Liu (1998) SC566 held that the requirement to comply with s. 5 Claims Act is a condition precedent that must be complied with before a proceeding is issued. The relief sought in this proceeding is amongst others, against the State as NFA is named as a party, and as previously referred to, is founded in contract. Thus, a notice pursuant to s. 5 Claims Act is required to have been given.
14. The proceeding is an abuse of process as to the claim against the NFA as a condition precedent to the commencement of this proceeding has not been complied with: Paul Tohian v. Tau Liu (supra).

15.  As to whether the claims against the other defendants are similarly affected, a defendant to a proceeding that is incompetent is entitled to question the competency of such a proceeding against it on the ground that it is affected by the bringing of an incompetent proceeding in which it is named as a defendant and which it is obliged to defend: Paul Eddie v. Bill Kirokim (2012) N4932; CMSS (PNG) Ltd v. State (2014) N5717.

16. Consequently, the whole proceeding should be dismissed as an abuse of process because of the failure to comply with s. 5 Claims Act. Given this, it is not necessary to consider the other submissions of counsel.

Orders

17.  It is ordered that:

a)	This proceeding is dismissed;

b)	The plaintiff shall pay the costs of the third defendant of and incidental to this proceeding to be taxed if not otherwise agreed;

c)	Time is abridged.
__________________________________________________________________
Young & Williams Lawyers:  Lawyers for the Plaintiff                               
Legal Section, Papua New Guinea Forest Authority:  Lawyers for the Third Defendant